[This article was published in the Norwegian Ombudsman’s annual report 2015. Read the report here.]
The European Committee for the Prevention of Torture (CPT) recommends that prison inmates get to spend at least eight hours a day out of their cells, engaged in meaningful activities. The NPM’s visits in 2015 have shown that several places of detention have not adequately succeeded in this respect. The NPM has found that some of the detainees in prisons, police custody facilities, at Trandum and mental health care institutions have such a low level of stimuli and human contact at times that it constitutes isolation or a state approaching it.
Activity programme and solitary confinement in prison
The NPM’s visits to five prisons in 2015 have shown that providing a satisfactory activity programme for all inmates poses significant challenges for the prisons. A lack of activity and human contact constitutes a clear risk of negative health and welfare consequences, and it can also negatively affect the inmates’ personal progression. This is a loss for the individual as well as for us all, because all inmates will one day return to society.
Some inmates experience the arrival phase in particular as being so restricted that it constitutes isolation. This form of isolation is often not due to the inmates’ behaviour, but to the fact that the prison’s premises are not adapted for communal use. The very high occupancy rate, which delays the transfer of inmates from the admission section to the communal section, compounds the problem. This is a concern, and, in its reports, the Parliamentary Ombudsman has emphasised the importance of new prisons having suitable premises for communal activities in all its sections, including the admission or remand sections.
Inmates who are locked in their cells for 22 hours or more a day without meaningful human contact experience solitary confinement. Such a low level of meaningful social contact can have serious consequences for the detainees’ mental health and it increases the risk of suicide. Based on knowledge about its harmful effects, the CPT has recommended that solitary confinement should only be used as a last resort and for the shortest possible time. The European Court of Human Rights (ECtHR) and the UN Special Rapporteur on Torture have also expressed grave concern about the harmful effects of solitary confinement.
“The NPM’s visits to five prisons in 2015 have shown that providing a satisfactory activity programme for all inmates poses significant challenges for the prisons”
With respect to short-term use of solitary confinement, the ECtHR and the CPT both strongly emphasise that the competent authorities implement measures to compensate for the negative effects of solitary confinement. The CPT has recommended that concrete measures be implemented in instances of long-term solitary confinement in order to change the situation that led to the solitary confinement. During its prison visits, the NPM has found that the prisons have implemented certain activation measures for people in solitary confinement. Several of the prisons have employed activity staff with responsibility for one- to-one follow-up of inmates in solitary confinement. Unfortunately, the measures often appear to be rather unsystematic and are vulnerable to budget cuts.
The use of long-term solitary confinement as a control measure has been strongly criticised in international law, and the UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) state that solitary confinement in excess of 15 days is prohibited. However, Norwegian legislation currently allows complete exclusion from the company of others for up to one year at a time. Although such long-term exclusion is very uncommon, the NPM found during its visits in 2015 some cases of exclusion exceeding 14 days and in individual cases even months and years. This gives cause for concern, and it is important that the legal basis for solitary confinement in the Execution of Sentences Act is assessed in light of the provisions on solitary confinement set out in the Mandela Rules.
Activity programme and solitary confinement at the police immigration detention centre
Similar challenges were also identified during last year’s visit to the police immigration detention centre at Trandum. The main finding was that the overall level of control at the detention centre was perceived as being too invasive, and measures were recommended to ensure compliance with human rights requirements for necessity and proportionality. Among other things, measures were needed to strengthen the organised activity programme at the detention centre, particularly for long-term detainees. At the detention centre, solitary confinement took place in cells that had less furnishings than prison cells. Some detainees were held in solitary confinement for a long time, especially following a rebellion in March 2015. As many as 24 administrative decisions involved exclusion from company for more than four days. The longest stay in solitary confinement lasted 23.5 days. The administrative decisions in these cases did not include information about why solitary confinement was to be upheld or whether less invasive measures for maintaining safety had been assessed.
Activity programmes and conditions similar to solitary confinement at mental health care institutions
During visits to three mental health care institutions in 2015, challenges were also identified in relation to activity programmes and conditions similar to solitary confinement. During its visits, the NPM reviewed the hospitals’ activity programmes. Examples of activities included trips outside the hospital, fi nights, music group, cooking, arts and crafts, communal meetings on current affairs topics and organised workout sessions. During its visits, the NPM nonetheless found that the range of activities offered at several of the hospitals was so limited as to give cause for concern. Many patients wanted the opportunity to spend more time outside in the fresh air and in physical activity, and to have more active staff who could organise indoor activities.
“The European Court of Human Rights (ECtHR) and the UN Special Rapporteur on Torture have also expressed grave concern about the harmful effects of solitary confinement”
Under the Mental Health Care Act, patients who are committed can be subjected to many invasive treatment and control measures, including segregation. Segregation entails that the patient is kept in a room that is almost devoid of furnishings. Like solitary confinement in prison, this limits the patient’s sensory impressions and largely cuts off his/her contact with other people. Segregation can also be used as a treatment measure or out of consideration for other patients, but never as punishment or out of consideration for the staff. Because we have relatively limited knowledge about the effects of segregation and because segregation infringes on the patient’s liberty, the NPM is investigating various segregation measures.
One visit revealed that patients subject to segregation spent most of the day alone and without direct supervision in the segregation unit. The practice was therefore similar to solitary confinement. The NPM pointed out to the same hospital that it was unfortunate to place a restraint bed in the segregation units because it did not help to calm down the patients and increased the risk of restraints being used before less invasive measures were tried. It was also a concern that patients who had been committed, who already had limited contact with other people before segregation commenced and were therefore particularly vulnerable, had their contact with the outside world reduced in other ways.
Unauthorised solitary confinement in police custody facilities, and remedial measures
A stay in a police custody facility is meant to be short; the detainee must either be released or transferred to a prison within 48 hours. For many years, the Parliamentary Ombudsman has expressed concern about the high number of breaches of the holding period. In July 2014, Oslo District Court found that the State had violated ECHR Article 8 concerning the right to respect for private and family life and the prohibition on discrimination in Article 14 in a case concerning solitary confinement in a police custody facility. The judgment confirms that the police and prosecuting authority is obliged to do what is possible within the confines of the existing premises to prevent isolation, by facilitating extended contact with a lawyer, time outdoors with others and external visits. Solitary confinement is not legal unless there is a risk of evidence being tampered with.
During visits to police custody facilities in 2015, the NPM investigated what the police do to ensure that the need for solitary confinement is assessed in each individual case and that remedial measures against solitary confinement are implemented. Stays in police custody cells often cause great mental distress to people in crisis situations and remedial measures are essential. The NPM has found that several custody facilities have not documented that an assessment has been made of whether solitary confinement is needed. Findings so far indicate that the police, in some cases, implement some remedial measures, such as more frequent stays in the exercise yard with other detainees. The Parliamentary Ombudsman has recommended, among other things, that the police facilitate external visits. A major challenge is that the custody facilities consist of custody cells without communal areas. It has yet to be clarified whether further measures, such as adaptions to buildings, are being planned to bring the Norwegian practice more in line with Norway’s human rights commitments.